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P. Simmons
P. Simmons, Lawyer
Category: Real Estate Law
Satisfied Customers: 34754
Experience:  12+ yrs. of experience including real estate law.
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Similar to other questions I've seen regarding tree removal.

Customer Question

Similar to other questions I've seen regarding tree removal. Back in 2004 the HOA adopted a new restriction against Cook Pines in the neighborhood. The Cook Pine on our property is at least 30 years old and likely existed before the house was built. Since the adoption of this new restriction in 2004, the HOA never demanded removal of this tree. Now, in 2016, they say they have the right to enter my property and remove the tree and charge me the costs. I am of the position that this tree should be grandfathered in (due to its prior existence and the fact the HOA didn't enforce the restriction for 11 years after adoption). Also, in my opinion, the HOA cannot enter my property and remove the tree. Do they have legal rights? I think they are just trying to use intimidating tactics.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  P. Simmons replied 1 year ago.

Hello! My name is ***** ***** I am a licensed attorney with more than 18 years of experience. I am here to assist you with your questions. Please understand that if I ask you for additional information, you are NOT charged again and our communications are NOT timed. So please see this as a relaxed conversation between friends. I am here to help

Also, if you would like to chat on the phone, let me know and I can make that happen.

HOA's in many ways, function like small cities. They can make and enforce rules, collect taxes, impose fines.

They have BROAD discretion...so long as they do not violate federal, state or local law, and so long as they comply with their bylaws (the rules that govern the operation of the HOA) they can make and enforce rules.

For example, they could make a rule that all houses in the HOA must be pink,

Such a rule would be enforceable....there is no requirement for a "grandfather clause"

In your case, an HOA can make and enforce a rule for no trees...or no particular type of trees so long as

1. The rule is not arbitrary (there must be some, tangible reason for the rule...it can not be capricious)

2. They can not enforce arbitrarily (so they can enforce the rule against some and not others)

What you are describing, if there is some reasonable basis for this rule, and they are enforcing equally (not just picking on you) they can remove the tree

This is the part of my job I don't like...when the law is not in favor of my customer. I wish I could tell you that there was a requirement for a grandfather clause, but I can only provide you information based on the law so that you can act on the best available information to you...I wish I had better news, but can only hope you recognize and understand my predicament and don't shoot the messenger. I'm sorry!

Please let me know if you have more questions. I am happy to help if I can. Otherwise, please rate the answer so I may get credit for my work.